Thursday, December 29, 2005

How the RIAA Litigation Process Works

At the core of the RIAA lawsuit process, is its initial lawsuit against a group of "John Does".

Here is how it works:

A lawsuit is brought against a group of "John Does". The location of the lawsuit is where the corporate headquarters of the internet service provider (ISP) is located.

All the RIAA knows about the people it is suing is that they are the people who paid for an internet access acount for a particular dynamic IP address.

The "John Does" may live -- and usually do live -- hundreds or thousands of miles away, and are not even aware that they have been sued.

The case may drag on for months or even years, with the RIAA being the only party that has lawyers in court to talk to the judges and other judicial personnel.

The RIAA -- without notice to the defendants -- makes a motion for an "ex parte" order permitting immediate discovery. ("Ex parte" means that one side has communicated to the Court without the knowledge of the other parties to the suit. It is very rarely permitted, since the American system of justice is premised upon an open system in which, whenever one side wants to communicate with the Court, it has to give prior notice to the other side, so that they too will have an opportunity to be heard.).

The "ex parte" order would give the RIAA permission to take "immediate discovery" -- before the defendants have been served or given notice -- which authorizes the issuance of subpoenas to the ISP's asking for the names and addresses and other information about their subscribers, which is information that would otherwise be confidential.

In the United States the courts have been routinely granting these "ex parte" orders it appears. (Not so in other countries. Both Canada and the Netherlands have found the RIAA's investigation too flimsy to warrant the invasion of subscriber privacy. Indeed the Netherlands court questioned the investigation's legality.).

Once the ex parte order is granted, the RIAA issues a subpoena to the ISP, and gets the subscriber's name and address.

The RIAA then discontinues its "John Doe" "ex parte" case, and sues the defendant in his own name in the district where he or she lives.

Thus, at the core of the whole process are:
(1) the mass lawsuit against a large number of "John Does";
(2) the "ex parte" order of discovery; and
(3) the subpoenas demanding the names and addresses of the "John Does".



Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

6 comments:

idrathernot said...

There's one part that you've left out, which specifically relates to US Cable companies.

Although the **AA does submit an ex parte order for discovery, Section 631 of the Cable Communications Policy Act of 1984, 98 Stat. 2779, as amended (47 U.S.C. § 551) does not allow a US cable company to disclose the identities of a cable subscriber without first notifying that subscriber.

The statute says that "a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned." 47 U.S.C. § 551(c)(1).

There are exceptions, though, in paragraph 2 of subsection c. It is worth noting, though, that the exceptions would not allow disclosure in response to a request or a subpoena ALONE. The statute does, however, permit disclosure “pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.” 47 U.S.C. § 551(c)(2)(B).

So, in this manner, the subscriber(s) are notified prior to their information being disclosed, and are given the opportunity to intervene. In effect, the ex parte order granted by the judge is not ex parte - a good thing for those persons being "anonymously" sued.

Ray Beckerman said...
This comment has been removed by a blog administrator.
Ray Beckerman said...

Your comment doesn't adequately recognize the reality of the situation, and is I think misleading in the extreme.

1. The motion and order are absolutely ex parte. The subscriber is never given notice.

2. When the subscriber does learn that there is such an order, he is not provided with the underlying complaint, or with the underlying application for the ex parte order, or with anything showing the basis of the order. Nor do they provide you with the judge's rules and other documents which are normally provided to someone being sued in federal court. So the subscriber is given no information as to what he or she would be seeking to undo, or as to how to go about it.

3. If the subscriber were to try to challenge the order and subpoena, he or she has only a couple of days to do it, and the location of the court is often hundreds or thousands of miles away from where the subscriber lives, where he has no attorney, his family and friends have no attorney, and he may not know anybody at all. So his theoretical opportunity to make a motion to quash the subpoena and/or vacate the ex parte order is just that, purely theoretical.

4. The vast majority of the people receiving the notice from their ISP are not aware that they are defendants in a pending lawsuit.

Your suggestion that they have been afforded a fair opportunity to be heard in opposition, is meritless.

idrathernot2 said...

I'm not sure if your comment was directed at me (sorry, I forgot my original password), or the person who decided to delete their comment.

Could you clarify and, if you were responding to me, explain how you feel it was misleading?

idrathernot2 said...

(Following up to my own post, now that I've re-read your response a few times)

1. You're right - the ex parte order in and of itself is just that, ex parte. The ISP does not even know that the motion for discovery has been served, so the subscriber hasn't the opportunity to be notified. Who challenges that? The ISP?

2. I would hope that any reasonable ISP would provide the subscriber the underlying complaint (including a copy of the ex parte order, the judge's decision in that ex parte order, and the lawsuit itself) when notifying the subscriber. I would also hope that the ISP would simply not direct the subscriber to call the settlement center, but rather advise them to seek representation.

3. I would imagine that most cable ISPs would inform the subscriber that they will be turning over the information on "X" date. As for your suggestion about an attorney in the area on which the subpoena was served, I understand your point, but I'm not understanding why a defendant has not challenged the order due to jurisdictional issues. Reverse DNS normally shows what area of the country an ISP subsciber is located in (for example, 1-2-3-4.montana.someisp.net) - The **AA certainly knows how to look at reverse DNS so presumably could figure out which Federal District to sue in.

4. This is, and would be, the fault of the ISP. If the ISP isn't clear enough in their notification letters that this is a lawsuit against the subscriber, then there's a huge problem with that ISP's legal team.

Ray Beckerman said...

Dear 'idrathernot2':

1. The ISP doesn't challenge it, nor would it have any reason to incur expense in doing so. The only person who would have any interest in doing so is the subscriber, "John Doe". You ask who challenges that? The answer is that nobody challenges that.

2. Your 'hopes' unfortunately are not what happens. They do not furnish the subscriber with a copy of the summons or complaint, or with a copy of the rules. Neither do they furnish the subscriber with a copy of the papers upon which the ex parte order is based. And 'Advising' someone to retain counsel is real pretty, except that 'advising' someone to do something that is impossible isn't very helpful. How would it go: "Dear subscriber, although you don't know what's going on, we advise you to spend thousands of dollars retaining an attorney in a city thousands of miles from your home, where you don't know anybody, much less an attorney, and we advise you to have that attorney make a motion that will cost about $10,000, and will have to be made in about 3 or 4 days. Plus we cannot give you any information about the case, so you can't even tell whether you would or would not have grounds for making any such motion, and would have no clue as to whether the motion is likely to be granted or not. Hope we have been of service."


3. You can't challenge jurisdiction until you've been served. These John Does haven't been served, and never will be served in that action; it is a sham action which was never intended by the RIAA to be prosecuted. It was brought solely for the purpose of getting the ex parte discovery.

4. It's nice for you to say that it's the ISP's fault. However they are behaving the way any corporation does. They are not incurring any expense they are not required to incur. Period.

I.e., your first comment was based on a lack of knowledge, and accused me of "leaving out" something. For that reason, it was misleading. I left out nothing. My post accurately described what is going on all across the country, in more than 17,000 lawsuits so far. Your comment injected things which were merely 'hopes' on your part. I have many 'hopes' too. However 'hopes' are not reality.

By the way, in the one case I know of in which a John Doe was quick enough and lucky enough to get legal representation to vacate an ex parte discovery order before it had been acted upon -- Atlantic v. Does -- the Judge has stayed the ex parte order and set a briefing schedule to consider whether the order should be vacated.